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1) What is an EB-2?
The EB-2 category is for aliens who are members of the professions holding advanced degrees (a Masters degree or higher) or its equivalent, or who because of their exceptional ability in the sciences, arts or business will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the U.S. and whose services are sought by an employer in the U.S.Â
In order to be considered an alien of exceptional ability, the USCIS regulations requires evidence of at least three (3) of the following:
- An official academic record showing that the alien has a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to the area of exceptional ability
- Evidence in the form of letters from current or former employers showing that the alien has at least ten years of full-time experience in the occupation for which he or she is sought
- If applicable, a license to practice the profession or certification for a particular profession or occupation
- Evidence that the alien has commanded a salary, or other remuneration for services, which demonstrates exceptional ability
- Evidence of membership in professional associations
- Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business associations. An alien who has an advanced degree or meets the exceptional ability requirements can process a labor certification application under the EB-2 category
THE NATIONAL INTEREST WAIVER (NIW) EXCEPTION
As mentioned above, the EB-2 category generally requires an employer and labor certification application. However, someone who qualifies for the NIW is deemed to be of such a value to the United States that he/she is neither required to process a labor certification application nor have a job offer.
2) Do I qualify for the NIW exception?
In order to apply for the NIW exception, the alien must demonstrate the following:
- The alien seeks employment in an area of substantial intrinsic merit
- The proposed benefit will be national in scope
- The national interest would be adversely affected if a labor certification would be required for the alien
Approvals under the NIW exception have become more difficult because of the case, Matter of New York State Department of Transportation (NYSDOT). Despite, the higher standard applied by USCIS in these cases, they continue to be approved. Successful applications require a careful legal analysis, strong legal arguments and a professional presentation. Our experienced immigration attorneys will help navigate you through this process.
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